The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: The major news of this day; then a full report, with analysis, of the now-retracted Newsweek story that triggered Muslim violence in Afghanistan; a firsthand account of the U.S. Marine offensive in Iraq from Ellen Knickmeyer of the Washington Post; today's Supreme Court decision on selling wine through the mail as reported by Jan Crawford Greenburg of the Chicago Tribune; and with the judges showdown approaching in the U.S. Senate, some basic history of the filibuster.

NEWS SUMMARY

JIM LEHRER: The body count in Iraq mounted today in a wave of execution-style killings. Police found more bodies in Baghdad and Kirkuk, to make a total of 50 in the last few days. They included 13 victims in the section of Baghdad known as Sadr City, 18 others found to the south of the capital, and ten Iraqi soldiers dumped in Ramadi to the west. Many were blindfolded, hands bound, and shot in the head. Today at least 19 more Iraqis were killed in a series of bombings and shootings. And Iraq's new government vowed to hunt down those behind the killings. On Sunday, U.S. Secretary of State Rice urged Iraqis to persevere. She spoke during a surprise visit to Baghdad. In western Iraq, residents began to trickle back into the city of Qaim today. They fled last week during a U.S. Marine military offensive. It officially ended on Saturday. Today, townspeople surveyed damaged buildings and roadways. Some complained the bombing was indiscriminate. The U.S. Military said the attack neutralized an insurgent haven. We'll have more on this story later in the program. A U.S. Senate committee has found leading Russian figures got millions of dollars in the U.N.'s Oil for Food program in Iraq. The Washington Post first reported the findings today, a day before a major hearing on the issue. The Senate report cited Saddam Hussein's former vice president. He said Saddam gave oil to the Russians to support ending U.N. sanctions. The Senate committee has also implicated British politician George Galloway, but he scoffed at the allegations today.

GEORGE GALLOWAY: The truth is that I have never bought or sold a drop of oil from Iraq, or sold or bought a drop of oil to anybody. And if I had, I would be a very rich man, and the person who made me rich would already be in the public domain.

JIM LEHRER: Galloway is set to testify before the U.S. Senate committee tomorrow. Former French Interior Minister Charles Pasqua is also implicated. He said today the charges are part of an American campaign against France. Newsweek Magazine today formally retracted a report blamed for violent riots in Afghanistan. The item said U.S. interrogators flushed the Muslim Quran down a toilet at Guantanamo Bay, Cuba. Newsweek had apologized Sunday for mistakes in the item, but did not issue a retraction at that time. Earlier today, a State Department spokesman said the damage is done.

RICHARD BOUCHER: It's appalling, really, that an article that was unfounded to begin with has caused so much harm, including loss of life -- one of our predecessors at the White House saying all the electrons go out and you can't get them back. The electrons are out there and the story is out there, and unfortunately it has very bad consequences.

JIM LEHRER: We'll have more on this story right after the News Summary. A top U.S. commander in Afghanistan warned today his forces need better relations with Islamic leaders. But Col. Gary Cheek said the coalition is making strides against Taliban elements. He said they are: "significantly weaker than they were a year ago and their influence continues to wane." U.S. and Afghan forces have killed 150 militants in clashes since early April. There was more gunfire today in eastern Uzbekistan, and new reports on the violence of recent days. Witnesses and journalists said government troops had killed as manyas 700 people. Hundreds more fled to neighboring Kyrgyzstan. We have a report narrated by Jonathan Miller of Independent Television News. A warning: Some of the images are graphic.

JONATHAN MILLER: Today Uzbek security forces making their presence felt on the streets. The 300,000 people of this leafy, relatively prosperous city, though, now fearing mass arrests; the purge that follows failed rebellion. The Uzbek authorities have tried to stop these graphic pictures getting out, but this is the evidence of what local people say was a massacre. On Saturday morning, journalists were surprised to see so many had dared venture out again. Some men openly cried; others were angry.

SPOKESPERSON (Translated): These are only a few of the bodies that you can see in front of you. Yesterday at 8:30, armored personnel carriers arrived here. Women were sitting here. They killed more than 100 women and children with their machine guns and cannons. They were killing people on the roof with grenade launchers.

JONATHAN MILLER: Some of the hundreds of bodies which had been laid out in an Andizhan schoolyard on Saturday were buried on Sunday. This trial of local Muslim businessmen accused of being Islamic extremists caused great anger in Andizhan, and triggered last week's uprising. There is a real Islamic movement active here. The movement shares the goals of the Hizb-Ut-Tahrir, an underground Islamist group still active in central Asia which seeks to create a greater Islamic state spanning Uzbekistan, Kyrgyzstan, Kazakhstan, Tajikistan, Turkmenistan, and China's Muslim Xinjiang Province. Today in the Uzbek capital, Tashkent, a group of opposition and human rights activists laid flowers to commemorate Andizhan's dead. "It was a black day," they said. "We're ashamed. We are still in the dark about what happened."

JIM LEHRER: The United States has a key air base in Uzbekistan. Today, Secretary of State Rice called for an end to the violence. And she also urged the Uzbek government to adopt political reforms. North and South Korea resumed high level talks today, the first in nearly a year. South Korea promised an important offer if North Korea returns to six-nation talk on its nuclear program. On Sunday, the U.S. National Security Adviser, Steven Hadley, warned of unspecified action if North Korea conducts a nuclear test. The U.S. Supreme Court ruled today Americans may buy wine directly from out-of-state vineyards. The decision was 5-4. It overturned laws in Michigan and New York that bar interstate shipments; 22 other states have similar restrictions. We'll have more on this story later in the program. On Wall Street today, stocks rallied as Home Depot and Lowe's reported higher profits and the price of oil edged lower. The Dow Jones Industrial Average gained 112 points to close at 10,252. The NASDAQ rose more than 17 points to close at 1994. And that's it for the News Summary tonight. Now it's on to the Newsweek story and anonymous sources, the Marines' western offensive in Iraq, the Supreme Court's wine decision, and a filibuster lesson.

FOCUS - NEWSWEEK - SOURCE REMORSE

JIM LEHRER: Jeffrey Brown has our media unit story on the Newsweek story.

JEFFREY BROWN: It was a small but explosive report. American interrogators at Guantanamo Bay, Cuba, had allegedly flushed a copy of the Quran down a toilet in an effort to shame and intimidate detainees. The one paragraph in the May 9 edition of Newsweek Magazine -- reported by veteran investigative journalist Michael Isikoff and national security reporter John Barry -- has been called a contributingfactor to several days of deadly protests in Pakistan and Afghanistan last week. But late today, Newsweek announced it was retracting its story. That came after the magazine yesterday said it may have gotten some parts of its story wrong. A note from the magazine's "Editor's Desk" said the anonymous government source it had relied on was no longer certain of the earlier account he'd given the magazine. At a briefing last week, the nation's top military officer, Gen. Richard Myers, said that the Newsweek article was not the main cause of the violence in Afghanistan.

GEN. RICHARD MYERS: It's the judgment of our commander in Afghanistan, Gen. Eikenberry, that in fact the violence that we saw in Jalalabad was not necessarily the result of the allegations about disrespect for the Quran-- and I'll get to that in just a minute-- but more tied up in the political process and the reconciliation process that President Karzai and his cabinet is conducting in Afghanistan.

JEFFREY BROWN: But after Newsweek's statement yesterday, the Pentagon blasted the magazine. Spokesman Bryan Whitman issued an unusually harsh criticism, telling the Washington Post the report was "demonstrably false," and that the magazine: "cannot retract the damage that they have done to this nation or those who were viciously attacked by those false allegations." The White House and State Department issued similar, strong critiques today, blaming the violence and deaths on the Newsweek report.

JEFFREY BROWN: And with us now from New York is the author of today's note in Newsweek, the magazine's editor, Mark Whitaker. For the record, a spokesman for the Pentagon declined an invitation to join us.

Mr. Whitaker, why did you decide to retract the story?

MARK WHITAKER: Well, I think we had already made clear that we thought that we had made a mistake in the fundamental aspect of the story that everybody's concerned about, which is that we had firm evidence that an internal military investigation into the situation at Guantanamo Bay had uncovered Quran abuse. We said in our magazine this week and went to great lengths to disclose what we had reported, how and why, and the chain of events afterwards. We fully printed the Pentagon's denials and said that we thought we had gotten this wrong. Then people started using the word "retraction" - were we prepared to retract. There were other elements in that story, in that brief story which people are not concerned about. This is the one detail everybody is concerned about and we are prepared to retract that.

JEFFREY BROWN: But let me ask you about the one thing that people, the other thing --- the main thing people really care about is: do you now know whether or not the event involving the Quran happened or not?

MARK WHITAKER: We have -- we are not in a position to know that. And our -- what our original report said was that a U.S. official, a source who we had dealt with in the past, we believe to be critical, we believe to have access to internal documents, was saying that this had turned up in an internal investigation. As we reported in the magazine this week, we offered the Pentagon a chance to comment on that story. We went to the extraordinary lengths of actually showing the entire story to a separate high level Pentagon official. They disputed other aspects of the story but not dispute that. After we published the story, we were not challenged on any aspect of it for 11 days until we heard on Friday night, 24 hours before our deadline from the Pentagon, that we had gotten it, had gotten it wrong. In the time we had before publishing, we decided to disclose as much as we could. We got back to the original source. The source said that he thought he had still seen something but couldn't verify that it was in the investigation we mentioned. As a result, we admitted that we may have gotten it wrongs and we apologized for that. Then today, both at the White House and elsewhere, people began asking whether this was a retraction. I think given the part that everybody is focused on, given that we had already said we had made a mistake and that we regretted it - we went ahead and said, of course, that amounts to a retraction.

JEFFREY BROWN: Well, you have seen and heard the criticism these past couple of days and, of course, this is based on the violence that happened last week. Do you accept some responsibility for the violence that took place?

MARK WHITAKER: We certainly accept some responsibility and we feel awful about it. And in the magazine this week and in the editor's note, I say that; I say how upset we are and I express sympathy for the Afghans who have died and been injured and for the U.S. soldiers who have been caught in the middle of all this. And at the same time, we in our magazine this week and others have reported that this was a chain of events. It was only a week after our story appeared that extremists in the region seized upon it, started talking about it, did it in a very simplified way that didn't in any way convey the context of our short story. That then got passed along and it became one element of a variety of things that caused the riots. I think what Gen. Myers said at mid-week what reflected our reporting and a lot of other reporting showed, is that there were many elements that contributed to this rioting. On the other hand, clearly our report played a role. And for that we feel terrible.

JEFFREY BROWN: Mr. Whitaker, can you explain for our viewers, for your readers who may not understand that in this case it appears your reporters relied on one anonymous source and then you went into print with that and here's the consequences. I think many people would not understand how that would happen without further corroboration.

MARK WHITAKER: Well, the fact is I know that there is a conventional wisdom that you should never go with a story based on one source. You have to have two sources, or three sources. The fact is that anybody who works in our business knows that occasionally there are stories that do have, that do only have one source. Sometimes you can't get more than one source. If you have a corporate whistle blower and the whistle blower is the only person who's prepared to come forward, sometimes you have to do stories based simply on that one source. Obviously the fewer sources you have, the more onus there is on your sense of the credibility of that or those sources. In this case this was not somebody -- you know, to describe the source as an anonymous source sounds like it could just be anybody -- it was a high level U.S. official, who, as I said, was in a position to know the things that he was telling us. It's someone who we had dealt with in the past and we believed to be credible. Obviously we would have not been prepared to do a story based on any source but we knew this to be a credible source.

JEFFREY BROWN: But given that something did go wrong here, who is responsible? Will there be some disciplinary action? Are you prepared to change some of the practices that you have perhaps even on your sources?

MARK WHITAKER: Well, certainly I think we feel to the degree that we've gone back and reconstructed our own process that everyone behaved professionally. Michael Isikoff, the investigative reporter, relied on a source who he knew to be informed and to be credible. We didn't simply rush into print. We gave the Pentagon the opportunity to respond. As I said, we went to the quite extraordinary lengths of actually showing a top official every sentence of the story. That official challenged other aspects of the story but not the Quran detail. And then after we published it, no one in the government came back to us and said, you got this wrong; you should correct it; this is going to have dire consequences for 11 days -- until afterwards. And I think that what that says is that no one anticipated the effect that this might have. In retrospect, perhaps we all should have. We at Newsweek should have. Perhaps the Pentagon officials who reviewed the story should have; perhaps the government, after the story was printed. Other news organizations have printed allegations directly from detainees of Quran abuse: The New York Times, the Washington Post, the BBC, and those reports did not lead to riots. For some reason at this particular time, ours was the match that lit a fire.

JEFFREY BROWN: All right. Mark Whitaker of Newsweek Magazine, thank you very much.

MARK WHITAKER: Thanks for having me on.

JEFFREY BROWN: This new episode now becomes the latest in an ongoing debate over the use, some would say the abuse, of anonymous sourcing in the media. Last Monday, a panel within the New York Times recommended limiting the use of anonymous sources. The Times report, titled "Preserving Our Readers' Trust," says: "Reporters must be more aggressive in pressing sources to put information and quotations on the record, especially sources who strongly desire to get their viewpoint into the paper. When anonymity is unavoidable, reporters and editors must be more diligent in describing sources more fully." Recently, a group of Washington bureau chiefs for leading news organizations launched a campaign to pressure government officials to put all briefings with reporters on the record. The bureau chiefs contend that the background-only briefings, in which officials speak without having their names used, force reporters to into a situation that makes them less credible with the public. A new survey out today from the University of Connecticut reinforces the notion of public displeasure with the use of anonymous sources. Fully 68 percent of respondents said they strongly question the accuracy of reports using unnamed sources.

JEFFREY BROWN: And joining me now to discuss these issues is Tom Goldstein, professor of journalism and mass communications at the University of California, Berkeley. And Jeff Jarvis, author of the buzzmachine.com weblog and former critic for TV Guide and columnist for the San Francisco Examiner. Welcome to both of you. Mr. Jarvis, starting with you, does the Newsweek situation tell us that anonymous sources are overused?

JEFF JARVIS: Well, I think absolutely. What is our prime directive in journalism? It is to tell the truth that we know. And in this case the editor just said that he had only one source; there were no direct witnesses; there were other problems. And what was the imperative to tell the story even if we weren't sure of it as journalists? It was kind of a case of gotcha - cynicism and to say we got somebody in the government or with a case of showing off, it would be addiction to exclusives. But was it really important for the public good to come out with this story even before we knew it to be true? And I think that the taint that anonymous sources now bring is that someone didn't have the guts to stand up and say did this happen? And that someone is still back there mysteriously; we don't know who that is. And that someone made a mistake and that someone was the only source of the story. And it was not adequate to come out and do the damage that has been done.

JEFFREY BROWN: Mr. Goldstein, what do you think, what was the imperative to put this into print?

TOM GOLDSTEIN: Well, let me just go back a little bit. This item appeared in the Periscope column in Newsweek, which is short items usually of speculation. I wouldn't say gossip but they usually are very, very well sourced, and one thing that Mark Whitaker did not say. He talked about one source. The regrettable part of this particular instance -- it seems everyone did everything right every step of the way but the result was a terrible, terrible result. The one flaw that I would point out is that in the original item, it talked about sources, which suggests to me that there are more than one people talking to Newsweek. It turns out to be bun source. And there are situations, to be sure, where one source is certainly as good as two, three or four. And you quoted earlier from the new New York Times policy, which I think - well, first in the New York Times policy, which you didn't quote from, it talks about how you might wish to show somebody what you have written, which has generally not been accepted in journalism. So Newsweek did an extra mile there. But what the Times does talk about is that you should identify sources more. You should talk about why they don't want to go on the record; how they know what they know. And in this particular item, that did not happen.

JEFFREY BROWN: Mr. Jarvis, are you suggesting that that poll we cited, this is why the public is so skeptical of journalism because it can't trust who the sources are?

JEFF JARVIS: No, I think it's actually more than that. I think that the public has seen a top down one way lecture media for its entire history. But now that the people own a printing press in the Internet, the people are speaking and they're having their turn and they're saying that, well, sometimes we don't trust what we hear. Sometimes we have more information. Sometimes we don't necessarily want to accept this. The Dan Rather case, we see our trust in journalism a bit in tatters now and these incidents always hurt. In the case of Dan Rather what should have happened when the bloggers came along and found things that were wrong with those documents is he should have said thank you, good; let's look into this together, let's see this as a cooperative effort. But that's not what's happening still, and so big media is still acting big. And I think that's a bigger problem than with the trust that the public has in the press.

JEFFREY BROWN: But let's say with the anonymous sources, Mr. Goldstein, for a moment, because this is -- the public, I think still doesn't understand the notion of relying on someone who refuses to use their name and how much corroboration do you need. You're at a journalism school. What do you tell the students?

TOM GOLDSTEIN: Well, first, in contrast to the Rather situation, I'd like to point out that Newsweek did immediately retract once it had the information, so it should be credited for that.

JEFF JARVIS: Not quite immediately --

TOM GOLDSTEIN: Close. You tell students and you hope that they learn their lessons -- is that you try to get people to talk on the record. But there are certain situations -- in the case of a case of a whistle blower, in the case of diplomacy, in the case of national security, where the person who has access to information cannot be identified by name. And journalism totally without anonymous sources, television, print, would be a very tepid, lame journalism.

JEFFREY BROWN: Mr. Jarvis, if were you setting up your newsroom, what would the rules be?

JEFF JARVIS: I agree that we need them, but Dan Okrent's very good column -- he's the public editor of the New York Times -- a week ago about the sources said they are way overused. For every little entertainment story -- and I created Entertainment Weekly, so I'm as guilty as anyone -- the gossip world uses anonymous sources - people who knew what star was with whom. But the problem is when you use that same standard with news that can affect lives, even lose lives, that's a different standard and I think that the problem becomes that people are inured in our business with the idea of, oh, what the heck, it's an anonymous source and I think it was Okrent who said that the idea is as - we just heard -- the good idea is to say why should this be anonymous? Why should we listen to this person? Why should we report this any way? I think we have to think that way now in terms of how the public is going view us and what we say.

JEFFREY BROWN: So what kind of guidelines though, I mean, where would you draw the line over whether it's allowed and when it's not allowed, Mr. Jarvis?

JEFF JARVIS: I think that you have to go to the simple truth. I think that we overdo rules in this business. It comes down to that prime directive. We tell the truth that we know to be true. And I think it comes down to that, that if you believe that you have got five sources, you believe this is very important; you understand that someone's life could be at risk for revealing this, there can be very good reasons to use anonymous sources. We now have to test those reasons every time. And I think that's really the only difference is to say, go to an editor and the top editors have to say, do we really need to do this? And, in fact, in this case would the world have been any worse off if Newsweek had not reported this? No, the world would be better off today.

JEFFREY BROWN: Mr. Goldstein?

TOM GOLDSTEIN: I mean, I agree that editors should play an increasing role in checking out sources but I also think that in the context over the last thirty or forty years, if you look in the long run, anonymous sources have gone down. They're still used too much but I think there is a higher consciousness and I think we will see a decreasing use of them in the future because I think the public has spoken.

JEFFREY BROWN: Mark Whitaker said that Newsweek will be reviewing their policy on sourcing. Mr. Goldstein, do you expect changes in the industry because of this and other incidents?

TOM GOLDSTEIN: I would anticipate and you earlier referred to the New York Times document which goes further than the Times has gone before, and I suspect that Newsweek will take a look at the use, the blind use of just saying "sources told Newsweek," as it was in this story. I mean, what kind of sources, where did they come from? How do they know what they know?

JEFFREY BROWN: Mr. Jarvis, what do you think given the competitive urges that you've cited in this industry?

JEFF JARVIS: Well, I think that's just the problem. News has changed. It used to be that we waited for the news to come to us, when the magazine arrived or the newspaper or the show started. Now the news waits for us to come to it. And I don't think this idea of gotcha, exclusives and scoops is really what is the public wants of us anymore. I think the public, as one blogger named Tim Porter said, we need new values. The public wants not competition but instead context. And I think he is very right about that. We have a different role in this world of commodity news. If we are going to be special and report well, then we have to report truthfully and provide context and not just come out with another scoop to say, oh, look at us; look what we know something somebody else doesn't know.

JEFFREY BROWN: All right. Jeff Jarvis and Tom Goldstein, thank you both very much.

JIM LEHRER: Still to come on the NewsHour tonight: The Marines offensive in Iraq; the wine sales decision; and some filibuster history.

UPDATE - WESTERN OFFENSIVE

JIM LEHRER: Now an on-the-scene account of that week long U.S. Marine offensive in western Iraq. It comes from Ellen Knickmeyer, the Baghdad bureau chief for the Washington Post. She was embedded with the Marines in their effort to root out foreign fighters from Syria. Margaret Warner talked with her this evening by telephone from Kuwait.

MARGARET WARNER: Ellen Knickmeyer, thanks for joining us. Give us a sense, first of all, how big this Marine offensive was in the west, and why did they launch it now?

ELLEN KNICKMEYER: It was the largest operation they've had since Fallujah. At one point they had... when I was watching, they had helicopters up in the air, they had bomber planes above and Marines on the ground and U.S. Army people on the River Euphrates. So it was a pretty big and coordinated attack.

MARGARET WARNER: Now from your description in the Washington Post, this offensive got off to something of a rough start.

ELLEN KNICKMEYER: We pulled up to the city Euphrates for what was supposed to be a dawn crossing. And in fact we didn't leave until the next morning. There was a problem with getting the bridge built across the river. And because of that, by about the fifth hour that we were waiting by the bank to cross, we started getting mortar fire from the nearest town, Ubaydi. And the mortars were getting closer, to the point that the last one hit in the yard where a lot of the officers, and we, were waiting to cross. And that's when they decided to go across the river into Ubaydi and take care of whoever was firing mortars.

MARGARET WARNER: And then you wrote a gripping account of the combat in Ubaydi, including the fact that the insurgents seems incredibly well-equipped in the form of armaments; in some degree better than the Marines?

ELLEN KNICKMEYER: Right. Right. The Marines had everything, all the kinds of weapons that the insurgents did, and more, but Marines on a firefight don't carry all those weapons around with them, so they initially... they were out-shot by the insurgents. There was the one house where the insurgents had... what they thought were foreign fighters had armor-piercing bullets, so that they were lying on the crawl space of the house and firing through the floor, through the inner walls and through the outer walls at Marines as soon as they came in, as soon as they stood at the door and machine gun bullets. And they could go so hard and so fast that they were going not through that house, but other houses next door.

MARGARET WARNER: Several days later, the squad that had borne the brunt of the fighting at that house was essentially demolished by an explosive device?

ELLEN KNICKMEYER: That's right. The squad that had lost two men in that house and kept going back until they killed the fighters and gotten the bodies of their wounded andtheir dead, they had been kept kind of to the back after that for a while, just so they could have time to regroup. And then they were reassembled in the other squads. And they were just rolling down the road in a convoy and an IED that other vehicles say they had passed, later said they had passed right over it, exploded under the armored vehicle of the squad and blew a two-foot hole near the bottom... the steel floor of the armored vehicle, and killed and wounded what was left of that squad.

MARGARET WARNER: The New York Times reported that the Marines have gone on a crash program to equip and armor themselves because they're so upset about having the lack of sufficient armor. Were the Marines that you were embedded with, did they ever complain to you about their equipment?

ELLEN KNICKMEYER: You know, about the armor, they didn't complain, but they did say they had just welded on a bunch of metals... lot's of them has said that they had just welded on a bunch of metal themselves. The vehicles we were riding around in, they had just attached steel plates to them, or put steel plates on the bottom of the floor to guard against mines and stuff. It's something they had to do themselves.

MARGARET WARNER: Then finally, when they did get north of the Euphrates to these villages where they thought the foreign fighters were hiding, they didn't find many.

ELLEN KNICKMEYER: No, they didn't. It was disappointing to the Marines themselves. They said... we went through villages, you know, village after village, and what we would find is, like, some of the families that had already... maybe half the families in some of the villages had already fled. They were afraid that if the Marines coming, then at the least it meant fighting. And some of the places, the fighting-aged men had gone and all the weapons seem to have been gone. And we didn't really know what to make of that because Iraqi households usually have an AK- 47 to protect themselves. And the Marines didn't know if someone... if fighting-age people had gone and hidden their weapons, or Marines were later told that the Mujahadeen operating in the area had prevented the families to have any kind of weapons like that.

MARGARET WARNER: Where does military intelligence think the foreign fighters have gone, and why didn't the operation go on and find them, wherever that is?

ELLEN KNICKMEYER: The Marines think that some of the... or a good number of the foreign fighters probably slipped across the border into Syria because they had that much advance notice, including about the 24-hour delay in getting across the river, and that big and noisy firefight on the other side of the river just before it started. Marines say, and local residents along the Euphrates say, that a lot of the foreign fighters and a lot of the insurgents are holed up in Husaybah, which is a town right on the Syrian border. And it's a place where, I mean, insurgents apparently operate pretty freely. But from what... I mean, just from what the local residents tell our reporters and what the Marines say, and the Marines just... the U.S. Military just doesn't have the resources now to go in on a Fallujah-style operation and clean out that town. With the resources it has, the U.S. Marines say that the U.S. is concentrating its resources in Fallujah and other cities; trying to calm them down. And in the meantime, they're watching the insurgents control Husaybah so much that there is actually a kind of a power battle going on right now, according to residents of the town between foreign fighters and tribes in that town.

MARGARET WARNER: All right. Ellen Knickmeyer, thanks so much.

ELLEN KNICKMEYER: You're welcome. Thank you.

FOCUS - WINE SHIPMENTS

JIM LEHRER: Next, the Supreme Court's big wine decision. Ray Suarez has that story.

RAY SUAREZ: In today's 5-4 decision, the Supreme Court struck down two state laws that ban wine sales from out-of-state wineries. The Justices ruled that New York and Michigan violated the commerce clause by prohibiting outside wineries from directly shipping to consumers, but allowing in-state wine makers to do so. More than 20 other states have similar laws that now will be called into question. Here to walk us through today's ruling is NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.

And Jan, who were the plaintiffs in this case, and what was the conflict that got it up to the high court?

JAN CRAWFORD GREENBURG: Well, many small family owned wineries, consumers, wine lovers wanted to be able to have access, wanted to be able to... the wineries wanted to be able to sell their product directly to the consumers. The smaller wineries thought that was an important market for them because sometimes, you know, they don't make enough, produce enough wine to have the big wholesalers get them in the big liquor stores. So they wanted to have access to these markets that allow the in-state shipment and delivery of wine, in-state wineries that could also sell wine directly to consumers. So they sued. They sued in Michigan, and they sued in New York, and they argued the laws discriminated against them; the laws allowed the in-state wineries to sell directly to consumers. They should also allow the out- of-state wineries to reach those consumers as well. And they said it was important to their livelihood and to opening up these new markets.

RAY SUAREZ: So how did the majority explain their decision to strike down those laws?

JAN CRAWFORD GREENBURG: Well, as you said, the ruling was 5-4, and it agreed, this decision below, and as you said there was a case out of Michigan and a case out of New York, and the appeals court in those cases split. And today the court agreed with the Ohio court interpreting the Michigan law, and said that the Constitution's commerce clause prohibits these kind of discriminatory laws. Now the commerce clause is designed to give Congress the power to regulate interstate commerce and suggest that states cannot pass laws that would discriminate against out-of- state businesses. In its ruling today, the Supreme Court said that these laws do just that; they discriminate against the out-of-state wineries by allowing the in-state wineries to sell their products in ways the out-of-state wineries cannot. And as a result, those laws, the court said, are unconstitutional.

RAY SUAREZ: So in the collision between the long-standing state authority to regulate how alcoholic beverages are sold and the collision between that and the commerce clause of the Constitution, the Constitution won basically?

JAN CRAWFORD GREENBURG: Well, that's right. And this case was interesting because it did involve two competing constitutional concerns. The opponents, the people who did not want to expand and have these broader direct sale of wine, the wholesalers, distributors, some anti-alcohol groups, they argue that another constitutional concern came into play here, the Constitution's 21st Amendment, which ended prohibition and gave states broad authority to regulate the transportation, importation of alcohol across state lines. One of the appeals courts had agreed with that thinking.But today the Supreme Court said yes, the 21st Amendment gives states broad authority to regulate alcohol but it does not give the states the authority to discriminate against out-of-state businesses. In effect the commerce clause of the Constitution trumps the 21st Amendment.

RAY SUAREZ: Now there are frequently 5-4 rulings from this court. But was it an unusual five and an unusual four?

JAN CRAWFORD GREENBURG: It was. And if this case has split these lower courts and also divided these Justices. And sure we talk about when we see these five to four rulings, we think the five more conservative joining against the four more liberal. But today Justice Anthony Kennedy wrote the opinion for the majority. He was joined by another conservative, Justice Antonin Scalia, and three liberals -- Justices Ginsburg, Souter and Breyer. In dissent Justice Thomas wrote the dissent, joined by Chief Justice Rehnquist, Justice O'Connor and perhaps one of the most liberal Justices on the court, John Paul Stevens, who also wrote a separate dissent. And the dissenters said that the words of the 21st Amendment were so clear, that states should have the authority to make these decisions and regulate this type of sale.

RAY SUAREZ: Now, alcoholic beverage sales have been a big money spinner for states. They tax it in a special way, and mail order and Internet sales and all that has been a sort of tax-free, open market. Aren't these inevitably going to come into conflict? Is there some tax issues at the heart of this?

JAN CRAWFORD GREENBURG: The states that had opposed these broader sales of wine had said that was one of their big problems, that it was harder to collect taxes and they needed to be able to have the sales from the wine shop or the sales of the in-state wine so they could ensure that they were going to have this kind of... easily get the tax collection. They also had argued that selling the wine online or on the Internet or by out-of -state distributors directly to consumers would make it easier for minors to have access to wine and promote underage drinking. The court today in the opinion by Justice Kennedy rejected both of those arguments. Justice Kennedy said that states that allow these kind of direct sales have not had any problem with tax collection. There are permanents and ways that they can go about reporting collecting taxes. And he also said that minors have not really been the ones who are ordering these boutique wines, boutique wines through the Internet; that they want more instant gratification, and in states that allow some form of direct shipment, that has not been a problem. Twenty-seven states allow form of direct shipment of wine; thirteen of those states allow it only if the state where the wine is coming from also allows the shipment, reciprocal privileges.

RAY SUAREZ: But does today's ruling necessarily mean that those old laws will be struck down? Can't some states say, well, that's it, nobody can mail order wine?

JAN CRAWFORD GREENBURG: That is exactly right. And what I was going to say 15 states now don't allow any wine shipment in state or out of state. So this doesn't affect them. The court's decision today only said if you are going to allow wine shipments, you have got to allow the in-state wineries and the out-of-state wineries to sell their wine to your residence. You can't discriminate. You can allow ban it all or you can allow it all, but you can't pick and choose between in state or out of state. Today the big open question after this ruling is what those, there are eight states that have this distinction, in-state and out-of-state, and what the states are going to do. The chair of the Michigan Liquor Control Commission told reporters this afternoon she was going to recommend to the Michigan legislature that it just ban all direct shipments of wine instead of expanding it and allowing the out-of-state shipments. So the efforts now in those states will turn to the legislature or even in New York, to the court and, of course, opponents and distributors, and wholesalers will just make the argument, just ban it all, even the in-state.

RAY SUAREZ: Jan Crawford Greenburg, thanks for coming by.

FOCUS - FILIBUSTER FACTS

JIM LEHRER: Finally tonight, what we should know about the filibuster, and to Gwen Ifill.

GWEN IFILL: As the Senate braces for a showdown this week over the president's judicial nominees, all eyes are on the filibuster -- that time-honored technique of essentially talking an issue to death. Advise and consent, delay and debate, all of these concepts are on the table. But what is the filibuster supposed to do?

For that, we turn to two political scientists. Sarah Binder, an associate professor at George Washington University and a senior fellow at the Brookings Institution; and Jeremy Mayer, an assistant professor in the school of public policy at George Mason University. Sarah Binder, I think we know what a filibuster is whether we're thinking of Jimmy Stewart or Huey Long, or Strom Thurmond. Tell us, what is it really supposed to be?

SARAH BINDER: Well, the way the Senate has developed today a filibuster is simply extended debate. And the Senate doesn't have a rule that allow the majority to cut off debate. So under today's rules, unless you have a supermajority of 60 votes, that extended debate keeps going.

GWEN IFILL: But why is it that it's now a big deal? Hasn't this always been the way it's supposed to be?

SARAH BINDER: Well, some people believe that the filibuster was a part of the framers' design for the Senate. In fact, there's very little evidence that the framers anticipated filibusters, but it came out an accidental change in the rules in the early 1800's. Since then, when senators realized they had could have extended debates, gradually they began to exploit the rules to serve their own personal purposes.

GWEN IFILL: Jeremy Mayer, expand on that. This began not because the framers decided this was something which should be protected or enshrined in the Constitution necessarily --

JEREMY MAYER: Absolutely.

GWEN IFILL: -- but it was something that became a grand tradition.

JEREMY MAYER: And it emerged very slowly and began to be used most particularly with civil rights. The grandest clashes in the history of the filibuster deal with the issue of civil rights where we had a strong regional opposition to a majority desire to stop things like lynching in the South.

GWEN IFILL: So it was about minority rights?

JEREMY MAYER: Absolutely. And it gives the minorities that impassioned chance to say no. Nothing else happens until someone compromises with us.

GWEN IFILL: We should say when we talk about minority rights, we're talking about literally -- not just some civil rights language but also the people who have the fewest votes?

JEREMY MAYER: Yes. In the history of the filibuster, usually racial minorities are not the winners; the one great exception was sort of a filibuster threat by Carol Moseley-Braun in 1993 when they were about to grant recognition to the Daughters of the Confederacy again, and she threatened to filibuster and won.

GWEN IFILL: How have they been used in the past? What are the most famous? I mentioned Strom Thurmond; I mentioned Huey Long, who apparently opined about pot liquor on the floor of the Senate as a way to take time. How have they been used?

SARAH BINDER: Well, there have been two categories roughly: One, the serious, serious filibusters as Jeremy has referenced to, the ones over civil rights, also the ones over slavery in the 19th Century. But there's also been a cost of what we might call trivial filibusters, like the two Nebraska senators in the 1980's were filibustering a bill that would have created a radio station to broadcast into Cuba. Why were they opposed? Well, they were afraid that Cuba would jam the new station and would interfere with the Des Moines radio station, right? Well, that meets my definition of probably a trivial, trivial filibuster.

JEREMY MAYER: My favorite is Al D'Amato filibustering over 750 jobs in Upstate New York with a typewriter factor; he went on for 15 hours and ended up singing songs about Mexico.

GWEN IFILL: I remember that was really not musical. But let's think back for a moment about the way that these are intended to be used. You say they're supposed to represent minority rights. But we see today a big fight about changing the rules. Have the rules ever been changed before?

JEREMY MAYER: Many times.

GWEN IFILL: Go ahead.

JEREMY MAYER: They go back to the - there used to be no cloture vote at all.

GWEN IFILL: Explain what cloture is.

JEREMY MAYER: Cloture is when a supermajority can step in and say, stop this debate. It used to be there was no a way to stop a single senator, there was just the respect that that senator might have for the institution. But in 1917, Wilson pressed to have this limited and you have -- he anticipated perhaps the Treaty of Versailles going through the Senate. And since then we've changed it now to 60 votes, as Sarah said.

GWEN IFILL: So, Professor Binder, let's talk about that. If they're talking about making this change, this rule change, how significant is that, if we know that there was already a rule change which allowed debate to be cut off, how significant is this rule change as we see it?

SARAH BINDER: Well, the thing to keep in mind here is that technically this nuclear option --

GWEN IFILL: Which we should explain what that is - that's just reducing the number of votes it would take to cut off filibuster.

SARAH BINDER: Filibuster, but only for a certain type of judicial nomination. What's important, though, is that this would not technically be a change in the formal rules in the Senate, which the other types of changes that Jeremy has referred to; this would be a change in precedent, which are interpretations of the rules. How do rules apply in different circumstances - and that's a lot more controversial for the Senate, even for a chamber that rarely changes its rules.

GWEN IFILL: Is there any way -- are there other ways which have been used to derail judicial nominees?

SARAH BINDER: Well, judicial nominations have been controversial at least for the past 25 years as well as historically we've seen debates over them. When the Clinton administration sent up judicial nominations to the Senate, Republicans were in control for six of the eight years. Well, they didn't need to filibuster, because they controlled access to the floor, so senators used holds, anonymous holds on nominations to prevent them from coming to the floor; they used blue slips, a committee process which allowed the home state senator essentially to derail a nominee. And sometimes they simply didn't hold a hearing, again, always pretty invisible ways but, nonetheless, ways of stopping judicial nominations.

GWEN IFILL: Jeremy Mayer, in this debate that's going on right now, one of the things that the folks who are in favor of the presidential judicial nominees have said consistently, in fact, on this program many times, have said this has never been used this way before; that the filibuster has never been used and shouldn't be used to derail a presidential judicial nominee. Is that true?

JEREMY MAYER: That is flat out not true. There was the Fortis nomination, but moreover, some of the Republicans who have been saying that actually voted for unsuccessful filibuster attempts against Clinton's nominees.

GWEN IFILL: Explain the Abe Fortis nomination; this was a Johnson nomination to be chief justice.

JEREMY MAYER: Johnson was leaving office and Fortis was being promoted to chief justice. Now, a lot of ethical complaints emerged about Fortis, who was also quite liberal and controversial.

GWEN IFILL: He was already on the court.

JEREMY MAYER: He was already on the court. And there was a filibuster attempt made and it was clear that they didn't have the votes probably even to get a majority for Fortis, so they allowed the nomination to die; they withdrew it. But there have been more recent filibuster by Republicans to stop judicial nominations but just weren't successful. So I think it's -- we shouldn't give them credit for voting and not succeeding.

GWEN IFILL: But there is a very narrow way of defining what this is and what those were, which makes it a little bit more complicated, makes it possible for them to make these claims.

SARAH BINDER: Absolutely. I mean, part of the problem is this - we say we know pornography when we see it but we don't really know filibusters when we see them. Sometimes it's in the eye of the holder and there are political reasons to say we are filibustering or we're not filibuster; and it makes it very hard to compare episodes over time.

GWEN IFILL: Now this term "nuclear option" was actually coined by Sen. Trent Lott, a Republican, but -- and there is debate over whether that's the right term or not. But in the end the reason why it was used is because it signals some sort of monumental change in the rules. Would this be a monumental change in the rules?

SARAH BINDER: It would be.

GWEN IFILL: Destructive.

SARAH BINDER: It's nuclear two ways: First of all the process by which they are trying to ban filibusters, the process is nuclear, the series of procedural events that they anticipate occurring; it has to break with the way the Senate traditionally deals with points of orders. But second, it's nuclear in the sense of how we expect Democrats to react, which is as they said, we will probably blow the place, which is to say just because you ban filibusters of judicial nominations, that leaves wide open a whole range of procedural tactics for individuals and for the minority party in the Senate to exploit. And that could be very detrimental to the majorities and their ability to pursue its agenda.

GWEN IFILL: Another question. The other terminology which has been used in this debate is, the Republicans mostly have called this the constitutional option, saying there is constitutional protection for the Senate to be able to change its own rules to do its business. Is there a constitutional basis for that?

JEREMY MAYER: Both sides are clinging to the Constitution in this debate. A lot of Democratic-related groups are saying, you know, in the ads on the air around the country that the Constitution is involved. The Constitution is silent about the filibuster. This does not involve the Constitution. The Senate is given the power under the Constitution to set up its own rules. So both sides in the debate are wrong when they try to wrap themselves in the Constitution.

GWEN IFILL: So what has to happen now? You are saying you both agree in that case that both of these cases, that the Senate has the right to do what it wants to do with its own rules, but what are the long-term implications that you can see?

SARAH BINDER: Well, the Senate has to figure out how it is going to deal with having supermajority rules that block majorities in an era of intense polarization of the party. And if they're going to do away with filibusters on judicial nominations, they have to prepared to have it taken away on all other nominations and all other legislative measures.

GWEN IFILL: For instance, what do you mean?

SARAH BINDER: Well, first, we could easily see if they succeed in banning filibusters of judicial nominations, it could be extended to ban filibusters of Executive Branch nominations under the reasoning that this is advice and consent. But it could also then be extended - and I would be surprised to see it extended to different policy areas, as they've done with budget or trade in the pas, or to see it extended broadly to ban the filibuster altogether. The senators have to decide is that the institution they want for the future?

GWEN IFILL: Do you see it having that broader effect potentially?

JEREMY MAYER: I think it could. And I think a lot of people need to realize the filibuster is the most undemocratic element in American politics except for the Supreme Court itself.

GWEN IFILL: What do you mean?

JEREMY MAYER: The Senate is already undemocratic; we don't do it by population. Small states get equal representation with California.

GWEN IFILL: And that the Founding Fathers did -

JEREMY MAYER: Clearly intended. But now with the filibuster, 40 senators representing as small as 16 percent of the U.S. population can stop everything. That's one reason we have the agricultural policies we do because, which gives such huge subsidies to such a small percentage of Americans, it's because the agricultural states which are largely empty have a strong voice in the Senate.

GWEN IFILL: Okay. Well, Jeremy Mayer and Sarah Binder, thank you both very much for helping us out.

JEREMY MAYER: Thank you.

SARAH BINDER: Thank you.

RECAP

JIM LEHRER: Again, the major developments of this day: Iraqi police found more bodies for a total of 50 victims in a wave of execution-style killings. And Newsweek Magazine formally retracted a report that interrogators at Guantanamo Bay, Cuba defiled the Muslim Quran. On the NewsHour tonight, Newsweek editor Mark Whitaker defended his staff, but he voiced regret. That report led to deadly riots in Afghanistan. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.